Madison Third Building Companies v. Fox Hall Realty Law Office, Inc.

(Civ. Ct. N.Y. Cty. 4/6/04)

We represented: Petitioner

Anil Singh, J.

DECISION and ORDER Petitioner is the owner of the building in which the subject premises are located. Respondent Fox Hall Realty Law Office, Inc. ("Fox") rents space to the subtenants. Petitioner has commenced this nonpayment summary proceeding against tenant and subtenants, alleging that the tenant has not paid either December or January rent.

The subtenants have moved for dismissal of the petition for lack of personal jurisdiction. Petitioner has cross-moved for an order amending the petition to reflect the corrected name of one of the subtenants. The subtenants have then separately brought an order to show cause why the tenant should not be enjoined from terminating the telephone service to the demised premises. These three motions are consolidated for the purposes of disposition.

The order to show cause relating to the telephone service has been settled at oral argument.

With respect to the challenge to personal jurisdiction, the arguments are as follows. According to the affidavits of service, service of the three-day demand and the pleadings in this proceeding was made by delivering copies of the pleadings herein, for each of the respondents, to a Marie Falco, a person of suitable age and discretion who stated that she was employed at the premises as Office Manager. Duplicate copies were then sent by mail to each respondent.

The respondent-undertenants argue that it is undisputed that Marie Falco works for respondent-tenant Fox. They also maintain that they on one hand and Fox on the other are in an openly adverse position because while the subtenants are current with their subleases, Fox is losing money on its own lease with petitioner and is motivated to wind down its operations and terminate the subleases. In this situation, the subtenants argue, an employee of Fox, even if employed at the premises, cannot be considered the right person to accept service on behalf of the subtenants. There is no allegation that respondents did not actually receive the papers.

Respondents' motion to dismiss for lack of personal jurisdiction is denied. The caselaw cited by respondents, to the extent that it is controlling, does not bolster their position. In Ilfin Co., Inc. v. Benec Industries, Inc., 114 Misc2d 411 (Civil Court, N.Y. Cty, 1982, Saxe, J.), the court dealt with the employee of a co-tenant and found that the person did not qualify as a person of suitable age and discretion. This case is not on point. The court in 417 East Realty Assoc. v. Ryna, 110 Misc2d 607 (Civil Court, New York Cty, 1981, Dankberg, J.) dealt with the issue of service at an alternative address. In 50 Court Street Assoc. v. Mendelson & Mendelson, 151 Misc2d 87 (Civil Court, Kings Cty, 1991, Rivera, J.), the court found that, under the circumstances of that case, the office manager of a subtenant was a person of suitable age and discretion. Under the circumstances of the instant proceeding, it appears that the tenant had a strong incentive to pass the served papers on to the subtenants. Without jurisdiction over the subtenants, the court could not issue a judgment that would empty the space of its occupants and relieve the tenant of its obligations under the lease.

Petitioner's motion to amend the petition to modify the designation of one of the subtenants as "Brief Justice Carmen & Kleinman" instead of "Brief Justice" is granted without opposition and the papers herein are amended.